The Indian Constitution was drafted by a Legislative body many of whose members were professional politicians. They were not concerned with promoting a particular ideology or a vision for the nation or with the pursuit of justice or liberty or any such abstraction. They dealt with practical questions- e.g. would Muslims retain reserved seats? What about affirmative action granted to 'lower caste' Muslims in the 1935 Act? The answer to both questions was- no. Muslims backed the wrong horse when they voted overwhelmingly for the League in 1946. Hindu Dalits got reserved seats because the Hindu majority wanted people of their own religion to rise relative to Muslims. Christians had been barred from affirmative action by the Brits in 1935. Later Dalit Sikhs and Buddhists also got entitlement to affirmative action. But this was not on the basis of some abstract desire for equality. The thing was purely political.
Four years ago, batty Bhatia brought out a book on 'Transformative Constitutionalism'. He claimed-
Reservations received constitutional sanction during the framing of the Indian Constitution.
No. They already had it by virtue of the 1935 Act. However lower caste Muslims lost such affirmative action as they had previously been granted.
The framers were aware that they were inheriting a highly stratified society,
No. The were aware that some among their own number had vigorously demanded such reservations and this was conceded by Westminster.
riven along multiple axes. Some of these stratifications pre-dated colonial rule, while others had been deepened and intensified because of colonialism.
All that was irrelevant. The one thing which mattered was Partition. The Muslims who had remained in India would pay a heavy price for what their brethren in Pakistan were doing to Hindus, Sikhs, Buddhists and Christians.
There also existed an awareness—at least five decades old—that affirmative State measures were required to overcome this social stratification, and achieve substantive—as opposed to merely formal—equality.
No. There was an awareness that a lot of Indian politics was about which community got the lion's share of Government jobs. C.R Das in Bengal had managed to gain some power by doing a deal with Muslims like Suhrawardy to give priority to Muslims till 'proportionality' had been reached. Similar bargains were being struck all over the place. However, thanks to Partition, Muslims in India would lose everything they had previously gained.
The post-Constitutional history of Indian equality jurisprudence, thus, has been shaped by debates around the nature of inequality,
Nonsense! It has been shaped by political tussles about increasing the quota for specific vote-banks. Generally speaking, the politicians always win in such battles. The Bench is useless. Still, there is now a quota for Economically weaker sections in some States.
Incidentally, the current violence in Manipur was triggered by a Court decision to give ST status to Meitis. The Kukis objected very violently.
Bhatia's mistake is to think that the Constituent Assembly's chief function was to frame the Constitution. This is false. It was India's central legislature. Israel too had a Constituent Assembly. But it never got round to writing a constitution. It too was a legislature which declared the state to be sovereign. In Pakistan however, the Chief Justice backed the Governor General against the Assembly. This was called the doctrine of necessity because it is necessary to do what the guys with guns tell you to do.
Bhatia writes-
the Constituent Assembly met—between 1947 and 1949—
It took over from the Imperial Legislative Council in December of 1946 and was replaced by the Parliament of India in January 1950. The Muslim League boycotted it.
to draft the Indian Constitution.
And to pass laws- e.g. the law which stripped Muslims who had crossed the border in panic of Indian citizenship.
The members of the Constituent Assembly were clear about the fact that it was the State’s task to identify—and address—the social stratification that characterized Indian society, and that it would be the Constitution’s task to facilitate this enterprise.
No. Some may have thought they had some such duty. Others did not. The plain fact is that nobody back then thought that Constitutions had magical powers. Armies mattered and Economics mattered. Lawyers and Judges did not matter.
For this reason, the Indian Constitution—in its bill of rights—contained both the formal equality clause that is familiar to constitutional scholars all over the world, but also—drawing upon the five-decade-old history of quotas that had been prevalent in different parts of the country—contained specific enabling provisions allowing the government to bring in affirmative action measures in certain cases.
They already existed! The innovation was to strip low caste Muslims of such benefits.
The debates around the equality clauses demonstrate how the framers borrowed from other constitutions, and used those borrowings as a base to articulate a richer, and most sophisticated set of constitutional ideas that were relevant to the soil in which Indian Constitutionalism was meant to take root.
Sheer nonsense! Nobody really thought that very much would change if people of this caste rather than that caste got more jobs as clerks. Still, these were bread and butter issues for 'vote-bank' politics.
These provisions constituted what the Supreme Court would later go on to call the “Equality Code:”
though they had nothing to do with Equality and were simply a parochial type of politics. The Supreme Court did try to pretend that the Constitution wasn't a political compromise but the politicians kicked it in its goolies again and again. Still, the Bench- being mainly high caste- gets some sympathy if it appears to be standing up for the rights of the 'forward' classes. There may be foreign scholars who don't understand Indian politics but Bhatia is not a foreigner. He is merely stupid.
Is Bhatia's book utterly worthless? Yes. It is based on a fantasy. The following is from the publisher's website-
We think of the Indian Constitution as a founding document, embodying a moment of profound transformation from being ruled to becoming a nation of free and equal citizenship.
No, we don't. 70 percent of the Constitution is cribbed from the 1935 Act which Westminster passed unilaterally after holding three futile Round Table Conferences. The remainder is a more anti-Muslim version of the Nehru report. Dr. Ambedkar dismissed his contribution to it as 'hack work'. He supported the First Amendment which sent a clear signal to the Bench that the Legislature was supreme on the British, not the American, pattern. Don't forget, the Indians could have cobbled together a Federal Government and reduced the Viceroy to a figure-head in the late Thirties. But Indians could not agree to do so at that time. They understood that Laws and Constitutions are meaningless. All that matters is who has physical force on his side. Gandhi kept demanding that the Brits hand over control of the Army to the INC before departing. The Army mattered. Constitutions did not. Burma was quicker than India in getting out a more left-wing Constitution. But it turned out to be utterly useless. The Army took over from a useless Civilian.
Yet the working of the Constitution over the last seven decades has often failed to fulfill that transformative promise.
There was no such promise. It was obvious that the only thing which mattered was productivity. If this rose, the Government would have more resources- including a stronger army and police force to implement its will. If productivity stagnated, there would be no transformation. There would be a Malthusian disaster. This is what actually happened. India became less able to feed and defend itself under Nehru.
A.O Hulme founded the INC because he wanted to boost agricultural productivity which would have permitted a virtuous circle of industrialization, infrastructure investment, etc. etc. Sadly, Indian lawyers and journalists and mahacrackpots weren't interested in productivity. Politics was about jobs for the boys and who got rich from which Government contract.
Not only have successive Parliaments failed to repeal colonial-era laws that are inconsistent with the principles of the Constitution,
India adopted the principle of 'constitutional autochthony'- i.e. all laws are deemed to originate from the native soil. Still, it must be said, colonial-era laws preventing the massacre of minorities were not repealed. They were ignored.
but constitutional challenges to these laws have also failed before the courts.
Not always. But courts don't greatly matter because productivity has remained stagnant for large parts of India. There are no resources available to bring about better outcomes.
Indeed, in numerous cases, the Supreme Court has used colonial-era laws to cut down or weaken the fundamental rights.
This did not matter in the slightest. The first Amendment showed the Legislature could do as it liked with respect to property, affirmative action and restrictions on free speech. In a Democracy it is elected politicians, not Judges, who do 'transformative' things. Moreover, the fact is, the State has used extra-judicial killing on an industrial scale to deal with insurrection or gangsterism or terrorism of any widespread sort.
The Transformative Constitution by Gautam Bhatia draws on pre-Independence legal and political history to argue that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens,
There is no real difference here. Britishers were subjects, not citizens, before 1949 just like Indians or Zulus or Kikuyus. No great 'transformation' occurred when the word citizen was substituted for 'subject'. Indeed, for many Indians, their position worsened. They had to run away from their ancestral homes.
but also the social relationships on which legal and political structures rested.
These relationships did change in the Princely States. Previously their people were 'British protected subjects'. They became first 'British subjects without citizenship' and then Indian citizens. This did mean they were less at the mercy of tyrants.
He advances a novel vision of the Constitution,
in so far as it is novel, it is nonsense
and of constitutional interpretation, which is faithful to its text, structure and history,
only in the imagination of a crack-pot.
and above all to its overarching commitment to political and social transformation.
Why not speak of spiritual and moral and aesthetic transformation? Also cow protection became a Directive Principle. Killing cows could be forbidden though maybe killing Muslims was cool.
Consider the following excerpt from batty Bhatia's book
The Constituent Assembly might have owed its legal existence to the colonial regime,
Atlee wanted India to be independent. Like Ceylon, India could have refused to become a Republic, but it couldn't refuse to rule itself because Britain simply wasn't interested in doing so. The Tories had pushed through the 1935 Act which gave autonomy to the Provinces. If the Indians had managed to agree to create a Federal government, they would have been de facto independent like any other Dominion. Atlee told the Indians that he would transfer all power to the existing Provinces and the Princely States if they couldn't agree to set up a Central Government. Thus, they agreed to partition because religion matters. Empty talk of Ahimsa or Socialism does not.
but one of its first acts was to declare itself sovereign,
which is what the Brits wanted. India was merely imitating Da Valera's Ireland.
and frame the Constitution on its own terms. In defending himself against the charge that he had simply copied the 1935 Act into the Constitution, Babasaheb Ambedkar, the principal draftsman of the Indian Constitution, insisted that it was only the “details of administration” that had been borrowed.
Dr. Ambedkar was the Chairman of the Drafting Committee. He dismissed his own contribution as 'hack work'. The Constitution could have been much briefer but Indian lawyer politicians are verbose. The Constitution is only important for two reasons- the first is that the Centre became much much stronger than the States. Secondly, Muslims lost everything they had previously gained.
It must be said, Senanayake in Ceylon showed much greater finesse than the Indians. He got full independence without conceding very much to the Tamils because their main leaders was verbose and irascible and managed to alienate everybody while talking himself out.
This was not an unfair argument. And while some measure of “responsible government” existed in British India, it was scarcely comparable with the full-blooded parliamentary democracy, founded on universal adult franchise and equality of citizenship, which the Constitution brought into existence.
Ceylon got universal adult suffrage in 1931. India didn't because Indians failed to agree to it.
As Uday Mehta points out, for all the surface similarities with the colonial past, there was much in the Constitution that was a radical departure:
Only because the Brits had fucking departed. They didn't want to come back so as to experience the joys of dysentery and the thrills of typhoid and the merriment that is malaria.
Here was a document which granted universal adult franchise
which Ceylon and Burma already had
in a country that was overwhelmingly illiterate;
and which smelled bad
where, moreover, the conditionality of acquiring citizenship made no reference to race, caste, religion, or creed...
Muslims who crossed the border in panic weren't allowed back and had their citizenship stripped from them.
which committed the state to being secular in a land that was by any reckoning deeply religious;
There was no such commitment at that time. Nehru and Ambedkar objected to the word 'secular' (as well as to the words 'Socialist' and 'Federal') being inserted into the preamble.
which evacuated as a matter of law every form of prescribed social hierarchy
Nonsense! The Princes continued to enjoy various privileges.
under extant conditions marked by a dense plethora of entrenched hierarchies; that granted a raft of fundamental individual rights in the face of a virtually total absence of such rights...
Rubbish! Britain's unwritten constitution had plenty of such rights and these extended to all British subjects. The plight of people in the Princely States was a different matter.
[and] most importantly, the Constitution created a federal democracy
there is no mention of federalism. The central government is the Union Government.
with all the juridical and political instruments of individual, federal, local, and provisional self-governance, where the nearest experience had been of imperial and princely authority.
But the President replaced the Monarch and some Princes became the equivalent of Governors of States.
These words lay the foundations for the argument of this book: that the Indian Constitution was a transformative constitution.
Because a country whose previous rulers have packed their bags and left has been transformed to some degree.
But what did it seek to transform? To answer this question, I begin with Ruti Teitel’s important insight: “As a state undergoes political change, legacies of injustice have a bearing on what is deemed transformative.”
The political change creates new injustices which have legacies- e.g. victims of Partition era ethnic cleansing. Also, if a country becomes unable to feed or defend itself there is a transformation into a fucking shithole which people pay a lot of money to run away from.
I shall argue that there were two clear “legacies of injustice” that the Constitution sought to repudiate and transform.
Why bother? The fact is Muslims had been chased away from places where they had enjoyed disproportionate political and administrative power. Gandhi may have said to Bihari Congressmen that he knew which of them had killed Muslims. Nehru may have spoken of sending planes to bomb Bihar. But this was just bluster. Nobody was suspended from the Party for killing or chasing away innocent Muslims. This had nothing to do with religious bigotry. Later on, 'backward' castes displayed great zeal in ushering in 'goonda raj' not because they enjoyed anarchy but because they were determined to humiliate the 'forward' castes. A lot of politicians became very rich as a result- more particularly if they were gangsters.
First, the Constitution transformed the legal relationship between the individual and the State.
Nonsense! Nothing changed- though, no doubt, Muslims got short shrift in the cow belt.
It transformed the subjects of a colonial regime into citizens of a republic.
Which made no fucking difference whatsoever save to whichever brown dude got to move into the Viceregal palace.
It replaced the colonial logic of governing and administering a population with the democratic logic of popular sovereignty, public participation, and limited government.
This 'democratic logic' turned out to mean the rule of a nice Italian lady and, maybe, her idiot son though 'assassination tempers autocracy'.
Apart from the guarantee of universal adult franchise
which the Burmese and Ceylon got before the Indians
and the structures of parliamentary democracy,
which permitted the replacement of the Windsor dynasty by Nehru's descendants.
this transformation was expressed through the fundamental rights that embodied citizenship and made democracy possible: the freedom of speech,
which was immediately curbed by the First Amendment
expression, association, and conscience;
Commies were quickly slaughtered if they wagged their tails
the right to life and personal liberty; and the right to equality before law. These fundamental rights, alien to the 1935 Government of India Act,
Nonsense! All these alien rights had been brought to India by the Brits.
represented “a tectonic shift in constitutional philosophy”.
Rubbish! Every newly independent country got a constitution though many abandoned the thing. Israel never got round to having a written constitution. So what? The fact is 'constitutional philosophy' is useless and has no effect on anything in the real world.
So far, so familiar. This is the story of constitution-making the world over, most famously told through the American Revolution.
The American constitution is important because America has dual sovereignty. India does not.
Yet, that was not all. The Indian Constitution was transformative in a second sense. It sought a thoroughgoing “reconstruction of State and society itself”.
Which could only occur if productivity rose. Sadly, India's politicians- including Ambedkar- had no interest in making the country richer or more secure. On the other other hand, Nehru turned out to be very good at passing around the begging bowl.
In its horizontal – or comprehensive – transformative avatar, the Constitution recognised that the State had never been the only locus of concentrated power in Indian society.
Fuck off! A country which is ruled by a government located on a small, far away, island doesn't have any fucking power worth writing home about.
Unlike the modern West, which understood sovereignty in centralised and unitary terms,
Rubbish! The West always had 'limited monarchy' or 'layered sovereignty' such that there were enclaves or spaces where the King's writ did not run. Moreover, there can be a sovereign order which has no territory. India did not have a notion of 'limited monarchy'. There was no check on power save greater military might.
Indian society had always been characterised by “layered sovereignty”.
Fuck off! Mughal Emperors killed anybody they didn't like as well as brothers or cousins whom they may have liked but whom they just went ahead and killed any way.
Hierarchies were established and maintained by “self-regulating communities” taking multifarious forms (primarily, caste),
This was equally true of European aristocracies. I keep demanding to use the toilet at Bucking Palace because I'm a member of the Royal Family by virtue of having married a Corgi. Sadly, Debrett's and the Almanach de Gotha refuse to list me as the claimant to the throne of Iyerland.
and the State had “rather limited powers to interfere with [a] social segment’s internal organisation”.
Though the Emperor could just kill people whose 'internal organization' he objected to.
Consequently, in India, freedom and equality were suffocated not merely by “a despotic government, but also by embodied traditional authority and...domestic or religious practices”.
Because India had very low fucking productivity. Europe finally understood that serfdom and the practice of noblemen being allowed to rape and kill 'commoners' was bad for productivity which was bad for Government revenue which was bad for the country's ability to buy weapons and fight off invaders. Japan only got this message in the second half of the nineteenth century but very quickly rose up by permitting non-samurai to join the Army and by beating Buddhist monks till they got a useful job.
The freedom struggle that culminated in the framing of the Constitution was at one end a movement for liberation from political servitude, but it was equally “a struggle for self-determination against multi-layered oppressive structures” of the feudal order as well as the structures that constituted colonial domination.
No. It was about getting the right to fuck over minorities and grab any nice property they might own. Also everybody wanted to move into the nice bungalows the Brits had vacated.
This story is reflected in the Constitution’s horizontal rights provisions (i.e., fundamental rights enforceable against groups, communities and private parties), a rarity in constitutions even today, let alone in 1950: Article 15(2), which bans discrimination in access to restaurants and roads, Article 17, which abolishes untouchability, and Article 23, which proscribes forced labour.
American constitutional scholars and researchers who studied India in the Fifties were unsure whether such rights were secured against private parties because Indian jurists themselves didn't know the answer to this question. However, the literal wording indicates this is the case. But, a Court judgment or a Law in this regard may be wholly ineffective or unenforceable.
To defend this vision of the transformative Constitution,
you have to believe that writing things down has some magical efficacy.
it is imperative to go beyond the sterile and deadlocked academic debates surrounding the bare text of the document,
surely there are debates in court rooms which aren't sterile or deadlocked?
and (some of) the legal instruments that preceded it. The words of the Constitution, I suggest, come alive only in the context of a broader canon.
Is it that of the Harry Potter Universe? Dumbledore waves his wand and the Constitution comes alive. Then young Harry keeps tugging at his little wand and jizzes all over it. Dr. Ambedkar is not amused.
For example, we cannot understand the constitutional guarantee of equal protection of laws without taking into account the “enormously influential” Samya (Equality) (1879), Bankim Chandra Chattopadhyay’s nineteenth-century political treatise on equality.
Nobody read it. It is stupid shit. Bankim says that the big man is probably a thief or a flatterer while the small man may be virtuous. People laughed at Bankim because, from the point of view of his British employers, he was a very small man indeed. Moreover, if the Brits fucked off to where they could make more money, Bankim's throat would be slit by the Muslims unless the Marathas or Sikhs or Biharis turned up to defend him.
We cannot understand the Constitution’s repudiation of gender discrimination without listening to the voices of the women who used the language of equal rights to publicly intervene in the nineteenth-century debates surrounding the restitution of conjugal rights, the twentieth-century controversies over the Child Marriage Bill, and the equally public struggle of the suffrage movement.
Very true. We must listen to the voices of dead women speaking languages we don't understand. After that we can watch them doing suggestive dances.
It is only when we read the speeches of Congress presidents Motilal Nehru and CR Das, savaging the colonial regime’s arbitrary executive authority,
Since Labour was in power, they were attacking the policies of the Labour party. Still it must be said, Nehru and Das were pretty tame compared to the 'Garam Dal' leaders of an earlier age- viz. Bal, Pal and Lal. However, Pal and Lal realized that Hindus would be big losers in their native provinces and thus moderated their position. Motilal and his son gained from being arrested during the Prince's visit. The boycott in Allahabad was total. Suddenly the cow-belt became the heart land of Nationalism. Das was remembered as Bose's patron. But he opened the door to Suhrawardy's rise and rise.
that the austere right to “life and personal liberty” will begin to speak to us.
Very true. If a guy kidnaps us and keeps chopping pieces off us, we won't be greatly bothered. It is only if the kidnapper starts reading out Motilal's or Das's speeches that we will begin to care about our life or our personal liberty.
It is the writings of BR Ambedkar, from his Report to the Southborough Committee to Annihilation of Caste and the story of the Mahad Satyagraha, that will allow us to understand how the Constitution was committed to erasing social and economic hierarchies.
Ambedkar's pal, JN Mandal was Jinnah's law minister. We understand why he had to run away to India. Hindus prefer Dalits to grow wealthier and more powerful than Muslims. Ambedkar helped strip Muslims of affirmative action benefits they had previously received under the 1935 Act.
Erasing 'economic hierarchies' means reducing the country to an equal state of starvation. Indians may have pretended they wanted this but were careful not to take land from wealthier peasants. Why? Their sons were in the Army. They would quickly kill any stupid Socialists in the same way they had already slaughtered Reds in Telengana.
And it is Gandhi’s uncompromising approach to civil rights and his defence of all speech – even “revolutionary speech” – that will enable us to understand the transformative potential in the simple words: “all citizens shall have the right to freedom of speech and expression”.
Nehru, with support from Ambedkar and Rajaji, quickly amended the constitution to deny this right. As for Gandhi's 'uncompromising approach', it involved telling Hindus they must shed their blood for the Caliphate. Also they should kill dogs. Not killing dogs is the opposite of Ahimsa.
That is just the beginning. For more than a hundred years, in their struggle against alien colonial rule and against indigenous social and economic domination, Indians imagined, conceptualised, and articulated a vocabulary of rights, of equality and freedom, and of dignity, a vocabulary rooted in the lifeworld of India.
These are English words. They don't exist in the vocabulary of the vast majority of Indians. Indeed, few Britishers talk that type of rot.
We do that struggle a disservice if we erase it from our consideration when interpreting the charter of fundamental rights that, finally, constituted an independent India.
The departure of the British constituted an independent India. Thankfully, nobody- not even the Chinese- wanted to conquer it. If India coheres it is only because Hindus have learnt from bitter experience that it is better to hang together rather than return to Muslim rule.
Rahul Bajaj, an MPhil student, wrote as follows of Gautam's book
In 3 recent judgments, Indian courts have viewed the Constitution as not merely an amalgam of parchment guarantees against state excesses,
None of these judgments relate to State excesses. The Bench has done nothing to stop extra-judicial killing on a massive scale in response to terroristic insurgencies of various types.
but as a document embodying a vision of a fairer, more inclusive and more progressive society.
Why not pretend that the Law is about nice nice things more particularly if the Law is your profession?
The first judgment, Harsh Mander v Union of India, delivered by the Delhi High Court, decriminalized begging, by declaring unconstitutional several provisions of the Anti-Beggary Act – a colonial relic,
the Bombay Act used in Delhi dates from 1959. It is is post-Independence
on the ground of their inconsistency with Article 14 (the equality clause); Article 19(1)(a) (the free speech clause) and Article 21 (life and personal liberty clause) of the Indian Constitution.
Castrating or maiming a child and forcing it to beg remains a crime. However, the police can always arrest beggars under some other law. But why should they bother? It is better to extort money for them or use them as paid witnesses.
In the second judgment, Navtej Singh Johar v Union of India, the Supreme Court declared unconstitutional Section 377 of the Indian Penal Code which criminalized voluntary sexual intercourse amongst same-sex individuals. In so doing, the Court viewed the Constitution as a “great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy.”
Politicians don't seem to care about this issue. The fact remains that homosexuals may be killed in some places no matter what the letter of the law states. Fortunately, the Hindus have traditionally been tolerant in this matter.
In the third judgment, the Supreme Court struck down a prohibition on the entry of women of menstruating age in the Sabarimala temple in Kerala. One judge in the majority, Justice D.Y. Chandrachud, offered a vision of the Constitution as being transformative in character, in setting up independent institutions of governance and granting the promise of full citizenship to those hitherto deprived and marginalized.
He was being silly. Two women did get into the Temple but paid a big price for doing so. The Communist Party, which rules Kerala, has decided to quietly reinstitute the ban. It turned out that stupid Judges have zero transformative power.
Against this backdrop, Gautam Bhatia’s new book on transformative constitutionalism could not have come at a more opportune time. As Bhatia explained, his book pursues four key objectives. First, it problematizes the notion that the Constitution is a conservative document,
whereas we view it as a useless document. Law suits are merely a tool of harassment or a form of 'time pass' for failed politicians like Subramaniam Swamy.
aimed at facilitating transference of power,
what fucking power has been transferred? Are beggars now beating or extorting money from police men? Are homosexuals sodomizing straight people with impunity?
as opposed to a fundamental transformation of the social and legal structures prevalent at the time.
But such 'fundamental transformation' would require a fundamental transformation of the economy. Judges have no power to bring this about.
Those who support this notion, Bhatia argued, cite examples of how more than 75% of the Constitution was borrowed from the Government of India Act of 1935; setting up of the Westminster system of Parliamentary democracy; and retention of the power to pass ordinances by bypassing the legislative process.
But this notion does not matter in the slightest. The plain fact is that when Judges tried to assert themselves, the Constitution was immediately amended. Nehru was somewhat cautious. The threat of mass resignation of Judges stayed his hand. His daughter had no such scruples.
Second, and relatedly, instead of adopting this narrow canon of interpreting the Constitution, which entails very limited engagement with the constitutional text and the context of its framing, Bhatia argued that constitutional interpretation must be conducted in a broader fashion.
It can be broad or narrow but it is likely to be ignored unless it is otiose.
Drawing on the writings of the civil rights lawyer K.G. Kannabiran, Bhatia stated that the Constitution should be viewed as embodying the hopes and aspirations of the society in which it was framed.
Why not view it as the sort of document which most Indian homosexual beggars dash off in between doing a PhD in Moral Philosophy at Oxford? The plain fact is that Indians hope and aspire to be materially better off and more secure. They don't give a shit about Constitutions.
To illustrate, Bhatia stated that the full import of the guarantee of equal protection cannot be grasped without studying Samya, Bankimchandra Chatterjee’s 19th century influential treatise on equality or the prohibition of gender discrimination without paying heed to the voices of the women who participated in 19th century debates on restitution of conjugal rights.
Nonsense! Some Bengalis may have read that shite. Nobody else did. There was a Gujarati girl who refused to join her husband because she wanted to study to be a Doctor. The Court threatened her with Jail but she remained adamant and so the State backed down. She did qualify as a Doctor and practiced Medicine for many years. After her husband died she dressed as a widow though he had remarried.
This vision of the constitution being a transformative document finds concrete expression in two ways
It could have been transformative but Nehru immediately amended it. Parliament remains supreme though the Court became more activist. But, if it is ignored, there is nothing it can do. Sooner or later, it will be put under the Lok Pal or else the State will require certification of judgments by the Law Ministry. Alternatively, the State may simply fail to appoint judges and the Bench will have to swallow its pride. After all, Judges need sinecures after they retire.
. First, by the fact that it transformed the relationship between the individual and state from one between colonial rulers and their subjects to citizens of a republic with a full panoply of civil and political rights.
The Colonial power kept minorities safe. The Rule of Law actually meant something. Being a citizen of a Dominion or a Republic meant having to run away to somewhere your community was in the majority. Rights only exist if effective remedies are available. But, if productivity remains low, such remedies won't exist or will be severely rationed.
Second, by the fact that the Constitution enabled, to quote Bhatia’s felicitous phrase, a “thoroughgoing reconstruction of State and society itself.”
What 'reconstruction' occurred? None at all. Either productivity rose a little and so people were slightly better off or it stagnated and there was a Malthusian disaster with large scale famine only kept at bay by American charity.
This reconstruction was sought to be achieved by spelling out restrictions on how private individuals must deal with each other, in the shape of prohibition of denial of access to public roads and restaurants, abolition of untouchability and the prohibition of forced labour.
All of which persisted save where productivity rose a little and thus feudal practices became unprofitable.
Third, unlike the dominant interpretive approaches currently adopted by Indian Courts, which in Bhatia’s view pay little heed to the text of the Constitution in pursuing the object of a broader sense of justice, the project of Transformative Constitutionalism operates within the confines of textual and structural constraints spelt out in the Constitution.
But it is just as useless as having a broader sense of justice because only productivity matters. If it rises, then cruel and inhumane practices become uneconomic.
Unlike the tool of public interest litigation, which Bhatia contended has been reduced to a tool in the hands of judges to arrive at socially desirable outcomes, the Transformative Constitutionalism approach permits an expansive reading of Fundamental Rights only to the extent that this is consistent with the text of the Constitution.
Anything at all is consistent with any text.
Finally, Bhatia’s conception of the approach of Transformative Constitutionalism envisages courts playing an important, but limited, role in the democratic project.
But the democratic project plays no role whatsoever unless productivity rises. The Government can't spend money it doesn't have even if all the members of parliament are menstruating homosexual beggars who incessantly visit Sabarimala.
More specifically, it views it within the province of courts to adopt a transformative understanding of the values of liberty, equality and fraternity, in the pursuit of a capacious vision of a democratic framework in which the forces of democratic politics can play out.
But if Courts do stupid shit, they will simply be ignored.
What it does not do, however, is to interfere with the democratic process itself (by courts arrogating to themselves the functions of other organs of government) or by determining outcomes.
The democratic process doesn't determine shit. Only productivity matters. If it falls then less resources are available for any private or public purpose. If it rises, then certain obnoxious customs disappear by themselves.
If Bhatia’s talk is any indication, his upcoming book will be of great interest to constitutional law scholars, judges and others interested in studying his views about the tools that judges should adopt to breathe life into the text of the Constitution.
Breathing life into a text- whether it be the Constitution or the Harry Potter novels- makes no difference to anything. Only productivity matters.
Bhatia, in an interview with some Leftist outfit, explains that productivity does not matter because 'scarcity' is a myth. We can buy everybody a Rolls Royce while also reversing climate change.
Gautam Bhatia: The term transformative constitutionalism or transformative constitution originated in post-apartheid South Africa
the idea is that some black ANC leaders would get as rich as fuck and they would prevent the majority slaughtering the White and Brown minorities and grabbing their property.
and it had a, it is a contested term. My understanding of it is that there are basically two things about it. First, that it's distinctively post-liberal in its approach to constitutionalism. There was a certain classic understanding of constitutions as being about limiting state power. That is an understanding that comes from the American Constitution that has had a disproportionate influence on constitutionalism across time and across the world.
It had a negative influence on India. We went for a unitary state and have a first amendment which goes in the opposite direction from the American one.
Transformative constitutionalism is post-liberal in the sense that it understands the role of a Constitution to be more than containing the state and it actually involves directing the state towards achieving certain social goals.
i.e. making some Blacks very fucking rich. The notion is that they will persuade poor Blacks not to kill the minorities. This won't work for very long. South Africa will become like Zimbabwe sooner or later.
Another really fundamental tenet of liberal ideology is the idea of neutrality. For example, John Rawls’s ‘right over the good’, where we can disagree over goals but there are certain rights- based principles that are non-negotiable.
Unless they are which is what happens when the nation goes to war or faces an existential threat or catastrophic occurrence.
But transformative constitutionalism specifically says that there’s a certain vision of society we're trying to get towards.
This was a feature of Communist constitutions.
In that sense, it’s also post-liberal that you could call it perfectionist again to use the term from analytical philosophy. But it has a certain blueprint of the society that it envisages as being the good society and it sees constitutions and constitutionalism as vehicles for getting there.
Unless the minority is simply slaughtered or decides to run away.
And then it also calls for changing legal culture, so it's not just what a constitution can do. To make the constitution do that you have to then alter the way people argue in court, the things that courts can do and just the structure of legal argument and legal culture.
What aspect of the South African legal system was transformed? Jails. They are now utterly horrible.
So the original article by Karl Klare, a labour lawyer talked about both these things, and often a bit about legal culture is forgotten and in my book, the term transformative constitutionalism broadly does something similar in the sense that it specifically talks about the Indian Constitution as being post-liberal in the sense that it was understood to be an intervention, both with respect to containing state power and providing political and civil rights and transforming subjects into citizens.
The Indian Constitution isn't liberal because the Indian Liberals were shit. Still, as originally written, the thing was okay from the administrative point of view because it was basically an extension and update of the 1935 Act to reflect the fact that Muslims were now in a much weaker position.
But also, it was meant to bring about a far-reaching transformation in Indian society and, specifically, tackling private power.
No. The Brits had left. Most Indians were agriculturists. They wanted to own more land. Would the Government deliver this? No. However, as was the case under the 1935 act, the States could do quite a lot while simply beating the landlord's goons and chasing them away would do the rest. The problem was that the title the peasant acquired might not be fungible. They would have an asset but be unable to borrow on that basis. This had already happened in parts of India. Thus, it was obvious the thing wasn't a panacea. The other thing which mattered was Government jobs. Nehru did greatly increase the size of the bureaucracy but this caused productivity to fall and real disposable income to decline. The Government faced persistent Budget and Foreign Currency problems. Still, as time went by, reservations were indeed expanded and will continue to expand. The Court will be ignored if it tries to stop this.
..ideas of rights were envisioned as applying to what we classically understand as the private domain.
No. The Government can't stop you from prohibiting a person of a different caste or religion from entering your private residence.
In that sense the Indian constitution was meant to challenge the ideology, so to say, of the public-private divide.
Nonsense! India was a pretty conservative place and remains so.
That's how I understand the transformative constitution in the Indian context.
So, something the Boers had to accept after Majority Rule was established must apply to India because....urm... time moves backwards in backward countries- right? Thus something which happened in South Africa in 1997 must have caused something to happen in India fifty years previously
Historically the constitution's transformative impulses have been submerged by the adjudicatory body that is charged with being the final word on the Constitution, which is the Supreme Court of India.
No. The Constitution permits States and the Union Government to introduce laws which transform India into a Nation where no liquor is drunk and no beef is eaten. The Supreme Court can always be ignored completely.
The dominant interpretation that the Indian Supreme Court has placed upon the Constitution and its provisions has been a conservative one. The transformative interpretation exists, and I use Edward Said’s idea of the ‘contrapuntal canon’. So there is a canon—there is the Indian constitutional canon of judgments which, despite a contrary long-standing public perception, encouraged by the Court, and by various scholars, is conservative. But then there are these dissenting judgments, some High Court documents, and the odd majority judgements as well. If you read these against the grain, in a contrapuntal way, you can excavate the transformative impulses that are there in the Constitution’s text and structure.
In other words, you can make up any shit you like. The truth is the Indian Constitution mandates the transformation of elderly heterosexuals into cats addicted to sodomy.
The great thing about texts is that they’re always open to interpretation.
I interpret the above statement as Bhatia saying 'miaow, miaow' while being buggered by a budgerigar.
...the Indian Constitution can and should be persuasively interpreted, so that it leads us towards those goals.
If India had a 'Law & Econ' school of jurisprudence, perhaps the Constitution could have been interpreted so as to permit more and more productivity enhancing reform. However, the truth is that the Indian legal system is so utterly shitty that it is only used as a way to delay matters or to harass people.
In the last few years—and this is a really cliched example by now—but the CAA protests are a really good example of the constitutional idiom going beyond the courts.
Muslims objected to non-Muslims getting citizenship in India. They failed because this has been Government policy since 1948. There was no 'constitutional' issue involved.
I think what was really interesting about the CAA protests was that the protesters were really clear about the fact that they were advancing an understanding of the Constitution that derived its legitimacy and validity, not in the hope that it would be one day accepted by the Supreme Court, but by the force of argument alone outside of the Court.
If Muslims had failed to persuade kaffirs to embrace Islam, how the fuck would they persuade them not to help fellow kaffirs who had to flee Islamic persecution?
They fashioned a certain reading of the preamble of the Constitution, a certain reading of Article 14, the equality clause, and they were very careful to decentre the Supreme Court.
It was the Constituent Assembly which passed the law stripping Muslims who had fled of citizenship.
If you look at the history of those protests and how the Constitution was used, it was always a reliance upon the document and there was no reference to the fact that there were pending constitutional challenges in the Supreme Court and the Supreme Court might or might not vindicate this understanding. It was a reading of the construction that stood on its own legs.
And failed. That was the outcome.
That is one of the I think standout examples of transformative constitutionalism that did not rely upon the court.
But which failed utterly.
If you look at a lot of work being done in Assam right now, in the aftermath of the NRC by lawyers like Aman Wadud, you find that they're setting up these Constitution centres in various places, explaining the Constitution. Again, they’re doing this without necessarily anchoring it to Supreme Court’s understandings of the constitution.
The Bench ordered the compilation of the NRC and opened detention centres. But it was the Nellie massacre which forced Indira's hand. Killing people is effective. Courts are useless.
...the role of the lawyer
is a very easy one. Just talk stupid shite and hope to get paid for it
is a very difficult one, especially when it involves issues like the CAA (Citizenship Amendment Act), Kashmir, Aadhar—basically, issues involving state power and the constitution.
What about rape and murder? Can lawyers prevent either?
You need a set of lawyers who will represent a client’s case as if everything was completely normal, as if this were a functioning democracy, with independent institutions.
No. We need lawyers who can win cases for us. But there is no point winning a case if you can't enforce the judgment. Lawyers simply don't matter save in so far as they can help draft contracts and broker commercial and other such agreements.
you also need a set of lawyers who draw upon that experience ( of fighting court cases) to mount a critique of the Court and the role the Court in checking or failing to check authoritarian tendencies and centralisation and so on.
This too is useless. The fact is the Bench has done nothing to reform itself. Thus it is disintermediated or ignored. We don't respect lawyers. We think they are thugs. A couple of years ago, lawyers beat up the police outside the Delhi High Court. A senior advocate, Prashant Bhushan vilified the Bench as corrupt. He was charged with contempt but was let off with a derisory fine because everybody shares that contempt. If Courts are known to be shitty, the lawyers who appear there are considered to be shitty as well.
...the PUDR judgement—which held that the right against forced labour includes a right to a minimum wage—is the only Supreme Court judgement to have given that interpretation to article 23.
The fact is Justice Bhagwati etc. knew that some workers on the ASIAD-82 site were indeed bonded laborers . I think some had been enticed with the prospect of getting sent to work abroad. But there was no great innovation or novel principle of law in the judgment. It could have been given by a lower court because it would have been easy enough for PUDR to establish locus standi. Still, since it was Government money being wasted on this white elephant (intended for the greater glory of Rajiv), there was some media interest in this matter. However, since many lawyers and journalists and so forth were busy erecting their own houses with badly paid workers being brought in by contractors, the whole thing was an exercise in hypocrisy. I recall that the one issue which attracted attention was whether some of these workers were actually getting visas to work in the Gulf. It might be worth spending a bit on money on such a Visa so as to get the fuck away from India.
You find one High Court judgment 1994 in Allahabad that said something similar. But that's it, and I think it's just because the radical implications of that argument. So, after the PUDR judgement, there were a couple of Supreme Court judgements where people tried to rely upon PUDR as precedent and the court just shut them down and distinguished the case, and you know basically just kind of buried that judgment.
For obvious reasons. Only productivity matters. Evil contractors were cheating poor peasants but poor peasants need to get the fuck away from the land in any case.
And I think it's obvious why because its just the implications are radical it, it would mean basically an anti-capitalist reading of the Constitution, which our courts or any set of courts anywhere are not willing to sanction.
The Constitution is 'Socialist'. That means 'anti-Capitalist'. The trouble is that 'anti-Capitalism means no productivity growth. Instead there is Malthusian agricultural involution till we get more and more farmers depending on the public distribution system to feed themselves. In other words, the median farmer is now eating more food than he himself produces. This is not sustainable.
As far as the role of republicanism goes, I think that the insight that republicanism provides for that kind of a reading of the forced labour clause is the focus on freedom as non-domination.
The starving may be non-dominated. Much good it does them. The point about being a slave is that it is in the master's interest to feed you- at least some of the time.
Now classical republican theorists still locate the source of domination in a personalised manner, so you still need an identifiable person to pin that dominating power on.
Whereas romantic republicanism is about blaming the Neo-Liberalism of our Galactic Overlords.
Which, of course, is not feasible and that's where workplace republicanism comes in, that is expressed I think most powerfully in writings of scholars like Corey Robin and William Claire Roberts and so on, is a depersonalisation and institutional or structural view of domination and of power.
Which is cool if you live in a rich country. Still, you can make much more money by plagiarising the scholarly works of David Icke.
So, if you just look at the classical understanding of fundamental rights and why they were applicable against the state, the idea was that the state has a monopoly over power.
No. We finance the State through our taxes and as voters have more leverage over it. Sadly, this means that voters prefer to put Right wing politicians in power because they don't want to pay millions of dollars to janitors in Government schools.
this idea of the monopoly runs through constitutionalism
a monopoly may be per se illegal. If there is monopoly profit, then the monopolist may be regulated or required to provide extra services. The problem here is that the monopolist's supply to a particular market may be elastic- i.e. they may shut up shop in any place where the attempt to regulate them is made. This is really a subject for Competition Policy rather than the Courts.
so when you want to affix liability for rights violations on a private party, a question that courts often ask is that does this private party exercise the monopoly over an important good or service. If, for example, a body has monopoly over all the water supply, in an area or electricity in an area and it's discriminating and not providing water to people of certain religion, then the court can often argue that because of its monopoly this private body has a state-like function, and therefore the constitutional rights provisions apply to it and therefore you know we are you know stopping this from going forward.
No. The State may have no role in providing utilities even if they are 'natural monopolies'. However the Common Law on restraint of trade as well as 'anti-trust' and other types of Competition Policy are likely to have created a regulatory regime. In the US a 'pattern and practice' investigation may lead to 'consent decree' based reform which is similar to that of a Regulatory Agency. However, the problem of 'Agency Capture' remains.
What that ignores is that you don't need to have a monopoly, but it may still be impossible to exit from an institution—
and it may be impossible to strong arm that institution
the whole point about the labour market is that no individual capitalist has a monopoly but, instead, has to constantly ensure that you they're cutting costs and increasing profits because otherwise they’ll get out of business So it's not it's not an individual capitalist who is a monopolist but it is the kind of a structure or the institution of the labour market that’s exercising that power through individual capitalists.
Herbert Hoover spearheaded a Corporate drive to raise wages through Cartelization. FDR continued it and Corporate America, after the Second World War, eagerly embraced what we would now call 'efficiency wages'. But this gives rise to duality- Japan's big problem. Productivity has stagnated for its SMEs which is why it has never really recovered from its bubble.
So workplace republicanism I think gives us a way or a method to frame that insight and constitutional language and to say that therefore workers have constitutional rights against their bosses, even though a boss, is not the state.
This doesn't change the fact that the boss has the constitutional right to take his capital and his entrepreneurial ability and fuck off some place workers are less bolshie.
I think in the Aadhaar case private regimes are operating under delegated powers from the states because Aadhaar is ultimately a nationwide centralised biometric identification system
Also the State is only functioning under delegated powers from our Galactic Overlords who are shape-shifting lizard people- like Oprah Winfrey and Michelle Obama. The problem with paranoia as a basis for an ideology is that there's always some other guy with a sexier delusion system.
Marx believed that so long as scarcity exists, people must be paid according to their contribution, not their needs. However, if a particular type of contributor is relatively scarce there will be high 'opportunity cost' or 'transfer earnings'. If, like Engels, you have some capital and entrepreneurial skill and training, you live well. If, like Marx, you are just one of umpteen starving scribblers, you have to rely on your pal to keep you in bread and beer.
Bhatia's ideology is based on the notion that technology has already advanced to a point where there is no scarcity. Everyone can have as much free electricity and water and food and as many Teslas and quantum laptops as they like. Evil 'neo-liberals' are befooling the bahishkrit to deny them their fundamental right to a fleet of Rolls Royce limousines! Also everybody should have a butler and a valet and a French chamber maid.
...Jean-Claude Juncker saying in 2015 after the Greek election that ‘there can be no democratic choice against the European treaties’.
He meant Greece was welcome to leave the EU
What that’s basically saying is look, you can have your domestic votes, in your own little country, but you can’t vote against neoliberalism, against the governing philosophy of the EU.
No. He was saying that if Greeks democratically decide that Germans should give them lots of money and suck them off every Tuesday, then the Germans will tell them to fuck off.
...neoliberalism, and capitalism in general, has this whole myth of scarcity.
Marx may have been a drunken fool but he knew scarcity wasn't a myth. Sure, a day may come when technology has advanced so much that robots do all the menial tasks and people only work if they want to. They give away what they make to anybody who appreciates their craftsmanship.
A lot of the edifice of neoliberalism depends upon this ideology of scarcity and there not being enough.
Bhatia's edifice depends on scarcity being a myth. Also there is no such thing as disease or old age. Big Pharma created that myth. In reality, nobody dies. The funeral industry is fooling us into burying or cremating our loved ones. Transformative constitutionalism will only be able to transform society when Judges interpret the right to life as the right not to die. Send all the undertakers to jail and you will soon see that everybody will become immortal. Sadly, under Modi, India has become authoritarian. The Bench is refusing to ban death or even disease. Indians are very stupid. That is the only reason they are not listening to batty Bhatia.
No comments:
Post a Comment